University of Texas Austin v April Garner, 18-0740 (Tex. Oct 18, 2019.
This is a Recreational Use Statute case where the Texas Supreme Court reversed the denial of the University’s plea to the jurisdiction and dismissed the claims.
The University of Texas at Austin owns and operates the Colorado Apartments, a student housing complex. Within the complex are four roads that permit two-way traffic around the complex and contain parking spaces that are oriented perpendicularly to the road. They connect to City of Austin streets. Bicyclists commonly use the road. Garner was traveling by bicycle to the trail head at Eilers Park. University employee Angel Moreno was backing out from a southwest-facing parking space and struck Garner. Garner sued the University for negligence, contending that the Tort Claims Act waived the University’s immunity by the operation and use of a motor vehicle. The University filed a plea to the jurisdiction asserting the application of the Recreational Use Statute (“RUS”), which was denied, and the court of appeals affirmed. The University appealed.
The RUS limits the liability of all landowners—public and private—who permit others to use their property for activities the statute defines as “recreation.” Such landowners are “effectively immunize[d]” from ordinary negligence claims, owing those who use their property for recreation only the duty not to injure them intentionally or through gross negligence. Garner’s only claim against the University sounds in ordinary negligence. She does not allege that the University or Moreno acted with gross negligence, malicious intent, or bad faith. The court of appeals held the RUS did not apply because under subsection (c) it did not grant permission to use the roads for recreational use. However, under the RUS subsection (f) states “Notwithstanding Subsections (b) and (c), if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises.” Subsection (f) contains no language (unlike subsection (c)) requiring permission or invitation. Here, it is undisputed that Garner (1) entered premises owned by a governmental unit and (2) engaged in an activity on those premises—bicycling—that qualifies as “recreation” under the statute. As a result, no waiver of immunity applies.
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